Davis v. Hilliard

Burke, J., delivered the opinion of the. Court. The bill in this, case was filed for the construction of the will of John L. HieodenxuS’, late of Washington County, de ³⁵⁰ ceased. The Court sustained a demurrer to the whole bill, and from its order dismissing the bill, the complainant has prosecuted this appeal.

Mr. Nicodemus died on July 30, 3915. His will was dated May 2nd, 1889, and to which there was one codicil bearing date November 10, 1910. His will and codicil were admitted to probate by the Orphans’ Court, of Washington County, and letters testamentary upon his estate were granted to Charles Edward Hilliard. Mr. Nicodemus created a trust as to all the rest and residue of his estate, and appointed Alexander1 Neill, of Washington County, trustee; with power to manage, control and dispose of the trust estate as directed by the -will.

Mr. Neill died, and by the codicil above referred to Chaides Edward Hilliard was substituted trustee in his place and stead, and was clothed “with all the powers conferred by my said will upon the- said Alexander Neill as trustee; and I further nominate and appoint the said Charles Edward Hilliard to be the sole executor of my said last will and testament.” His last will directed that- the trust therein created should be administered under the supervision of the Circuit Court for Washington County, sitting as a Court of Equity, and that Court has assumed jurisdiction of its administration. The testator left surviving him a widow, four children and eight grandchildren, viz: (1) Virginia S. Nicodemus, widow; (2) Eva May Davis, a daughter; (3) Edwin Nicodemus, a son; (é) Cora B. Wilson, a daughter; (5) Georgie A. Conner, a daughter; (6) Roy Wilson, Frank Wilson, Harry Wilson, John Wilson and Margaret Wilson, grandchildren, the children of Cora B. Wilson; (7) Edwin Conner, Catherine' Overington and Ashby Conner grandchildren, the children of Georgie A. Conner. We now turn to the dispositions of the estate made by the will: First—The testator owned a house and lot located on Washington street, in Hagerstown, Md. This house and lot ³⁵¹ he devised to his wife, Virginia S. Ricodemus, for and during her life, and upon her death he willed and directed “that said property be sold and conveyed by my executor hereinafter named, and the proceeds of such sale shall be by him paid to my grandchildren, in equal proportions, share and share alike.” Second—He also owned certain shares of stock, standing in his name, of the Peoples Rational Bank of Hagerstown and of the Second Rational Bank of Hagerstown. This stock he bequeathed to his wife, Virginia S. Ricodemus, for and during her life, and upon her death he directed that the stock be sold.

The proceeds of the sale he gave and bequeathed to his grandchildren. He also owned some unimproved lots of ground, and a two-fifths interest in a tract of land near Hagerstown, called Eastside Park. Those lots and Ms interest in Eastside Park he directed his executor to sell, and to pay the proceeds of such sales “to the trustee hereinafter named, and shall he held by him upon the trusts and conditions as are hereinafter declared of and concerning the residuum of my estate.” Third—He then devised for life, to each of his daughters, named above, a house and lot of ground referred to in the will, and he directed that, upon the death of each daughter the house and lot devised to her for life he sold by the executor, and the proceeds paid over to the trustee named in the will to be held by him “upon the trusts and conditions hereinafter declared of and concerning the residuum of my estate.” Then follows a devise to the Trinity Reformed Church of Boonsborough, Washington County, hut with this devise we are not concerned in this case. By the seventh clause of the will the testator devised and bequeathed “unto Alexander Reill of Washington County, Maryland, in trust for the uses, and purposes hereinafter set out all the rest and residue of my estate, both real and personal and wheresoever situated. * * * he to hold and receive the same upon the following trusts and conditions, and for ³⁵² the uses and purposes following, etc.” This clause proceeds to define the duties’ of the trustee, and to confer upon him broad powers with respect to the management and control of the estate, including the power of sale.

The following language appears in this clause: “And from and out of tho rents, income, interest and dividends received by him from my estate in his hands, I will and direct that he shall pay to my son, Edwin Hicodemus', annually during his life the sum of two hundred and fifty dollars; and shall likewise pay annually to my daughter, Georgia Addie Conner, during her life, the sum of one thousand dollars, and shall likewise pay annually to my daughter, Eva May Davis, during her life the sum of one thousand dollars, and shall likewise pay annually to my daughter, Cora Y. Wilson, during her life, the sum of one thousand dollars and shall likewise pay to each of my grandchildren until they respectively attain the age of thirty years, the siun of two hundred and fifty dollars annually.” The testator stated in the will that the legacy given to his son Edwin is less than those given to his sisters because he had already advanced to his son “large sums of money.” The eighth and ninth clauses of the will are here transcribed : “8. I further will and direct that any income, rent, interest or dividends which may remain in the hands of said Trustee at the end of any year, after having paid therefrom the amounts hereinbefore directed to bp paid shall he added to and become part of the principal of my estate in his hands and subject to the same trusts and conditions as are herein declared of' and concerning my estate in the hands of said Trustee.” “9. I further will and direct that upon and so soon as the eldest of my grandchildren attains the age of thirty years said trustee shall divide the said estate-in his hands into as many parts as there are children of my son and daughters then living, and the one part thereof he shall then pay to said grandchild who has attained the age of thirty years, and shall thereafter ³⁵³ as each of my said grandchildren attains the age of thirty years pay to him or her the one part of the principal of my estate in the hands of said trustee, ascertained as aforesaid, such payments of principal of my estate to my said grandchildren to be subject, however, and conditioned to the prior1 payment of the annual payments hereinbefore directed to be made to my children and grandchildren, it being my will and said trustee is hereby directed to retain at all times in bis hands a sufficient sum of money or estate, the interest of which will be sufficient for the payment of said annual payments to my children and to such of my grandchildren as shall not have received payment of their part or portion of the principal of my estate.” There can he no doubt, that the proceeds of the sale of the unimproved lots, and of the testator!® two-fifths interestin Eastside Park passed to the trustee! to be held by him subject to the trust created by the will. The will so states.

And it is likewise beyond question upon the express language of the will, that the proceeds of the sales of the houses and lots mentioned in the. first, second and third clauses, of the will would! pass to the trustee subject to the provisions of the trust. Virginia S. Hicodemus, the widow, renounced in writing all claim to the devises and bequests of both real and personal property made to her by her husband’s will. The hill was filed by Mrs. Eva May Davis, a daughter of the testator, and the position taken by her in the sixth, seventh and eight paragraphs of the hill are here transcribed: “Sixth. Your oratrix now charges and alleges that the said John L. ISTicodemus died intestate as to the income, rents, issues and profits of all that real estate by said will devised to the said Virginia S. ISTicodemus for and during her natural life which has arisen and may arise during the life of the said Virginia S. ISTicodemus; and that the life estate in the said real estate for the life of the said Virginia S. ISTicodemus passes to the heirs-at-law of the said John L. ISTicodemus. ³⁵⁴ “Seventh.

Your oratrix further charges and alleges that the said John L. Rieodemus died intestate as to the issues, income and profits which have arisen or will arise during the life of the said Virginia S. Rieodemus from the stock owned by and standing in the name of the said testator in the People’s Rational Bank of Hagerstown and the Second Rational Bank of Hagerstown, and that the life estate in the said stock for the life of said Virginia S. Rieodemus passes to the heirs-at-law of the said John L. Rieodemus. “Eighth. Your oratrix further charges and alleges that the provision of said will whereby the Said testator attempted to create a trust of the residue of his estate for the benefit of the grandchildren of the said testator is void so far as the corpus of said residue is concerned, and that by a true construction of said will the said testator died intestate as to the corpus of said residue, and that said residue passes to the heirs-at-law of said Jno. L. Rieodemus.” The hill prayed for the passage of a decree construing the will and determining that the testator “died intestate as to that part of his estate as. to which he is hereinbefore alleged to have so> died,” and for other and further relief. The propositions asserted by the appellant in the sixth and seventh paragraphs of the hill appeared to have been abandoned.

They were not discussed in the argument of her counsel in this Oourt and are not adverted to in his brief. We cannot give our assent to these propositions. The position taken in those paragraphs is that the renunciation of Mrs. Rieodemus resulted in an intestacy as